IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 30815 OF 2019 (GM-CPC) BETWEEN:
SMT. NANJAMMA, W/O T. NAGARAJAIAH, AGED ABOUT 56 YEARS, R/O AT NO.29, 3RD MAIN, G.K.V.K. LAYOUT, YELAHANKA, BANGALORE 560065.
… PETITIONER (BY SRI. MOHAMMED SHAMEER, ADVOCATE) AND:
1. SMT DODDAKKA, W/O LATE M.P. HANUMANTHAIAH, AGED ABOUT 70 YEARS, R/O AT NO.722, "VENKATESHWARA NILAYA", TUDA LAYOUT, NEAR H.M.S. SCHOOL, SIRA GATE, TUMKUR 572106.
2. SMT. RAJAMMA W/O LATE KHANTHAPPA, AGED ABOUT 65 YEARS, R/O AT THIMMALAPURA DINE, OORUKERE POST, KASABA HOBLI, TUMKUR TALUK & DISTRICT- 572 106.
3. SRI. EKESHBABU, S/O LATE P. KANTHAPPA, AGED ABOUT 41 YEARS, R/O AT 29, 3RD CROSS, UPPARAHALLI, TUMKUR 572106.
4. KUMARI RUKMINI D/O LATE P. KANTHAPPA AGED ABOUT 36 YEARS R/O AT OORKEREPALYA, NOW AT CALLED AS "SIDARAMANAGAR", UOORAKERE POST KASABA HOBLI, TUMKUR TALUK & DISTRICT 572106.
5. SRI. RAGHUNATH S/O LATE P.KANTHAPPA AGED ABOUT 30 YEARS R/O AT OORKERE PALYA, NOW AT CALLED AS "SIDARAMANAGAR", UOORAKERE POST KASABA HOBLI, TUMKUR TALUK & DISTRICT 572106.
6. SMT. SHANTHAMMA W/O P. JAYARAMAIAH AGED ABOUT 62 YEARS 7. SMT. CHANDRAKALA D/O LATE P. JAYARAMAIAH AGED ABOUT 33 YEARS 8. SRI. LOKESH S/O LATE P. JAYARAMAIAH AGED ABOUT 31 YEAWRS 9. SMT. DIVYA D/O P. JAYARAMAIAH AGED ABOUT 29 YEARS DEFENDANT NOS. 6 TO 9 ARE R/AT 58/1, 6TH CROSS, 3RD MAIN, VENKATARPURA, KORAMANGALA, 1ST BLOCK, BANGALORE 560 034.
10. SMT. SHIVAMMA W/O VENKATARAMAIAH AGED ABOUT 61 YEARS R/O BHAGWATI, 80 FEET ROAD,4TH CROSS, 2ND STAGE, MAHALAXMI NAGAR, NEAR BATAWADI, TUMKUR 572106.
11. SRI. THIRUMALAIAH, S/O LATE PEDDAIAH, AGED ABOUT 58 YEARS, R/O AT OORKERE PALYA, NOW AT CALLED AS "SIDARAMANAGAR", UOORAKERE POST, KASABA HOBLI, TUMKUR TALUK & DISTRICT 572106 12. THE SPECIAL LAND ACQUISITION OFFICER, NATIONAL HIGHWAY AUTHORITY OF INDIA, OPP VASANTHA TALKIES, DAVANGERE – 577001.
NOW OFFICE AT THE SPECIAL LAND OFFICER, NATIONAL HIGHWAY AUTHORITY OF INDIA, DOOR NO 2462, 1ST FLOOR, 1ST CROSS, AEROPLANE BUILDING, V P EXTENSION, CHITRADURGA – 577501.
13. THE SPECIAL LAND ACQUISITION OFFICER NATIONAL HIGHWAY AUTHORITY OF INDIA, REPRESENTED BY ITS SPECIAL DEPUTY COMMISSIONER, TUMKUR, TUMKUR DISTRICT.
… RESPONDENTS (BY SRI. PRASANNA V R, ADVOCATE FOR R6 TO 9;
V.C.O DATED 26.07.2019, NOTICE TO R1 TO R5 & 10 TO 13 D/W) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 08.07.2019 (VIDE ANNX-A) PASSED BY THE II ADDITIONAL CIVIL JUDGE SENIOR DIVISION, TUMKUR IN OS 5/2016 ON INTERLOCUTORY APPLICATION NO.XVI FILED BY THE R-6 TO 9 HEREIN, AND REVERSE THE SAME.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the plaintiff in a partition suit in O.S.No.5/2016 is invoking the writ jurisdiction of this Court for assailing the order dated 08.07.2018 a copy whereof is at Annexure – A whereby learned Second Additional Civil Judge, Senior Division, Tumakuru, having allowed respondents’ application in IA No.16 filed under Order XIV Rule 2 of CPC, 1908, has framed additional issue Nos. 1 & 2 for being treated as preliminary issue; the first issue relates to resjudicata and the second relates to payment of court fees. After service of notice, contesting respondent Nos. 6 to 9 having entered appearance through their counsel, resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this court is of the opinion that the impugned order is unsustainable for the following reasons:
(a) the issue as to resjudicata would not arise inasmuch as, petitioner has withdrawn the earlier suit in O.S.No.210/2015 with leave to litigate afresh on the same cause of action as provided under Order XXIII Rule 1 of CPC; and, (b) the issue as to suit valuation and court fee also may not merit being treated as a preliminary issue inasmuch as the recording of evidence is half a through; the Full Bench of this Court in VENKATESH R DESAI Vs. SMT. PUSHPA HOSMANI AND OTHERS, ILR 2018 KAR 5095, at para no.35 has observed as under:
“35. Accordingly, and in view of the above, we are clearly of the view that by virtue of Section 11 of the Karnataka Court Fees and Suit Valuation Act, 1958 read with Order XIV Rule 2 of the Code of Civil Procedure,1908, when an issue of valuation and/or court fees is raised in a civil suit on the objection of the defendant, the same is not invariably required to be tried as a preliminary issue and before taking evidence on other issues; but could be tried as a preliminary issue if it relates to the jurisdiction and the Trial Court is of the vie that the suit or any part thereof could be disposed of on its determination. The reference stands answered accordingly.”
Therefore, this issue does not merit being treated as preliminary issue, and the same requires to be tried along with the rest of the issues in the main matter.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; the issue as to resjudicata is deleted; however the issue as to suit valuation & court fee shall be tried along with other issues in the suit.
All contentions of the parties are kept open. No costs.
Sd/- JUDGE Bsv